Unbreakable Vows: Same-Sex Marriage and the Fundamental Right to Divorce

Abstract

This Article considers whether there is a fundamental constitutional right, through the liberty component of substantive due process, to divorce. This right to divorce becomes particularly important for same-sex couples whose marital rights are incomplete, at best. Surely, if divorce were outlawed by any state, the masses would rise up against such tyranny with cries that divorce must be constitutionally protected. But place divorce in the context of same-sex marriage and the response is predictably more tepid. “Those” marriages are not legal anyway, so what harm is there in excluding them from divorce? States that refuse to recognize same-sex marriage, for benefits purposes, can arguably refuse to recognize such marriage even for the limited purpose of divorce — which requires, as a predicate, a lawful marriage. This approach fails to appreciate the integral nature of divorce to marriage.

When marriages fail, as they have since the founding of our nation, people exercise their right to divorce and move on to new, healthier, happier relationships. Nearly 5,000 divorces are granted daily in the United States. The reality remains that many Americans are married more than once in their lives. Many individuals seize this opportunity on multiple occasions, perhaps growing more convinced in their forever vows with each subsequent marriage. But, can a state outlaw divorce and hold individuals to their initial promise to the state and each other to be legally bound ‘til death do they part? Or, does the United States Constitution afford relief from marriage for changed circumstances, including the simple desire to remarry someone else?

Numerous cases suggest there is a fundamental right to divorce. And, from a logical perspective, divorce appears to be an essential corollary of marriage. Surely the state cannot force individuals to remain legally bound, regardless of the words uttered during marriage ceremonies. Marriage, and its bundle of rights, must assuredly include not only an entrance, but also an exit. For many same-sex couples, this traditional exit has been sealed, withheld, or otherwise thwarted. Accordingly, same-sex couples must convince courts that divorce is a fundamental right — not a right that states can withhold from discrete or unpopular minorities. The fundamental right to divorce provides the only shelter from imposing unbreakable vows.

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